As testimony nears in Fort Hood shooting case, some mysteries remain

(MCT) AUSTIN, Texas — In the 45 months since the Nov. 5, 2009, mass shooting at Fort Hood, the mysteries surrounding the incident have steadily dwindled.

It’s clear that Maj. Nidal Hasan was the shooter. He has admitted to being the gunman on numerous occasions inside the courtroom in recent months. It is only because of an obscure military legal rule that he cannot plead guilty to 13 charges of premeditated murder and 32 charges of attempted premeditated murder at his long-awaited court-martial, which will hear opening statements on Tuesday.

And, for the most part, the 42-year-old Army psychiatrist’s motivations have been revealed. In calm and polite tones, Hasan has told military judge Col. Tara Osborn that he was attempting to aid the Taliban leadership in Afghanistan by killing American soldiers. He has told potential jurors that he believes the Quran gives him the right to kill nonbelievers. In communications with the media, he has left no doubt that he sees himself as a key player in the effort of violent Islamic extremists to oppose the U.S. military.

But some mysteries linger. Chief among them: How did the well-educated, lifelong Army officer become so thoroughly radicalized, and why didn’t anyone in his chain of command intervene? The answer, experts say, could emerge at some point during the trial, which might last up to three months. If found guilty by a jury of 13 high-ranking Army officers, Hasan could be sentenced to death.

Witnesses say that shortly after lunch on Nov. 5, 2009, Hasan stood up inside a busy medical processing center, loudly gave the Arabic phrase “Allahu Akbar” and opened fire on unarmed soldiers undergoing final checks before deploying to war. By the time the rampage ended, with Hasan shot and partially paralyzed by Fort Hood police officer Mark Todd, Hasan had fired 214 rounds and wounded or killed 45 people in the worst shooting massacre in modern history at a U.S. military installation.

For the many victims who have been summoned back to Fort Hood to testify, there are other, more pressing unknowns: How will they react on the witness stand when they are cross-examined by the man who shot them? Hasan has dismissed his attorneys and is representing himself, meaning he would give an opening statement and directly question witnesses.

During jury selection, he politely but firmly questioned some Army officers about their thoughts on Islam and the Taliban, and he asked them about their own religious views. Those exchanges were surprisingly cordial, but when victims take the stand the atmosphere is likely to be considerably more tense.

“As far as being cross-examined by him, I am not sure how I will respond,” said retired Staff Sgt. Shawn Manning of Seattle, who was shot six times and continues to heal from his wounds. “I am guessing that it will be difficult to keep my composure and answer his questions without being angry. I realize that every person has the right to defend themselves, but I am hopeful that the judge will not allow him to intimidate or harass the victims.” Military law experts say Osborn will have to walk a fine line between allowing Hasan, a legal novice, to conduct what might be unorthodox questioning and preventing him from inflicting more psychological pain on his victims.

“She will give him some latitude in questioning them, but certainly she won’t let him traumatize a witness, just as the judge wouldn’t let any defense counsel badger a witness,” said Lisa Windsor, a retired Army prosecutor now in private practice in Washington.

Manning said he and other victims are also concerned that Hasan will try to use the trial “as a means to highlight some of his radicalized beliefs.” At least some legal observers believe Hasan has created a situation in which he will try to do just that. “He wants to use the trial as a platform to attract other radical extremists to engage in violence,” said Jeff Addicott, director of the Center for Terrorism Law at St. Mary’s University. “He wants to attract other people and motivate them.” But predicting Hasan’s behavior is difficult. During last month’s jury selection, Hasan alternated between vigorous questioning of officers’ religious attitudes and a nearly catatonic passivity. Acting as his own attorney, Hasan made no effort to retain two potential jurors who had expressed serious reservations about the death penalty, even after Osborn ruled that their opposition to the sentence shouldn’t disqualify them from serving. (Both Army officers were struck after challenges from prosecutors).

Nor did Hasan use his single automatic challenge, which would have allowed him to strike any juror without justification, even though several told the court that they held unfavorable views of Islam. That’s led some to conclude he isn’t seeking to avoid death.

Hasan, who joined the Army after graduating from high school in 1988, had reportedly sparked alarm among fellow soldiers while completing his psychiatry residence at Walter Reed National Military Medical Center. In 2007, he gave a presentation titled “The Koranic World View As It Relates to Muslims in the U.S. Military,” in which he told listeners, “It’s getting harder and harder for Muslims in the service to morally justify being in a military that seems constantly engaged against fellow Muslims,” according to the Washington Post.

The final slide of his presentation urged the Defense Department to grant conscientious objector status to Muslim soldiers to “increase troop morale and decrease adverse events.”

Prosecutors said Friday that they want to introduce Hasan’s academic presentations and evidence linking him to Sgt. Hasan Akbar, a former soldier sentenced to death for a 2003 grenade and rifle attack on fellow soldiers in Kuwait. Osborn, who has also ruled that prosecution experts won’t be able to call Hasan a terrorist from the stand, said she will rule at some point during the trial on whether she will allow such evidence from Hasan’s pre-Fort Hood years. She will allow them to introduce Internet searches on jihad he made in the days and hours before the attack.

Prosecutors could also show premeditation, as they did during the Article 32 hearing, simply by demonstrating Hasan’s gun purchase several months before the shooting and his frequent practice at a Florence shooting range. If they choose that strategy, they could introduce radicalization testimony during the sentencing phase, experts said.

The lack of a terrorist designation remains a major point of contention between victims and government officials. Victims want the shooting declared a terrorist attack, which would open the door to victims receiving Purple Hearts and additional medical and retirement benefits.

The Pentagon has balked at declaring Hasan a terrorist or foreign combatant, arguing that doing so would complicate the legal case against him. More than 100 victims and family members, many of whom say they received inadequate medical care, are suing the federal government, claiming officials did nothing to stop Hasan despite multiple red flags.

Before jury selection began last month, Osborn ruled that Hasan won’t be allowed to put on a defense strategy in which he would argue he was justified in killing American soldiers because he was saving the Afghan Taliban from unlawful violence.

Hasan’s former civilian attorney, Belton lawyer John Galligan, said that by shutting down Hasan’s preferred defense, Osborn is preventing him from explaining his mental state to jurors, a key part of parrying the government’s premeditation arguments. “I think the judge has deprived him of his most basic, core rights as a defendant,” Galligan said. “I think this will be a reversible error.” The majority of recent military death penalty sentences — 11 of the past 16 — have been overturned on appeal, many due to procedural errors.